Petition of Florida State Bar Ass'n for Promulgation of New Florida Rules of Civil Procedure

• Decision Date: 03 December 1940
• Court: Florida Supreme Court
• Parties: Petition of FLORIDA STATE BAR ASS'N FOR PROMULGATION OF NEW FLORIDA RULES OF CIVIL PROCEDURE.

199 So. 57

145 Fla. 223

Petition of FLORIDA STATE BAR ASS'N FOR PROMULGATION OF NEW FLORIDA RULES OF CIVIL PROCEDURE.

Florida Supreme Court

December 3, 1940

En Banc.

Original proceeding on the petition of the Florida State Bar Association for promulgation of New Florida Rules of Civil Procedure.

Petition denied.

BUFORD and CHAPMAN, JJ., dissenting.

COUNSEL Florida State Bar Association, D. H. Redfearn Chairman, of Miami, Wm. H. Rogers, of Jacksonville, E. Dixie Beggs, of Fort Myers, James Whitehurst, of Brooksville, Fred M. Burns, of Jacksonville, John M. Murrell, of Miami, and J Velma Keen, President, of Tallahassee, John Dickinson Secretary, of St. Petersburg, J. Lance Lazonby, President, Junior Section, of Gainsville, and Charles Cook Howell, Jr., Secretary, Junior Section, of Jacksonville, for the petition.

Martin H. Long, Adair, Kent, Ashby & McNatt, Clarence G. Ashby, L. R. Milton, Austin Miller, and J. Turner Butler, all of Jacksonville, Dewey A. Dye, of Bradenton, L'Engle, Shands, McCarthy & Lane, E. J. L'Engle, and Edward McCarthy, Jr., all of Jacksonville, Herbert U. Feibelman, of Miami, Joe Hill Williams, of Lake Butler, and Leitner & Leitner, of Arcadia, opposing the petition.

M. G. Rowe, of Daytona Beach, and Gramling & Gramling, of Miami, amicus curiae.

OPINION

TERRELL Chief Justice.

As I understand the contention of the petitioners, it proceeds on the theory that this court has inherent power to adopt the Florida Rules of Civil Procedure, that there is an urgent necessity for their adoption and that the showing made is ample to grant the petition.

Few subjects in the law have been bruited and discussed more than the inherent power of the courts to make rules. This court has approved the doctrine but it has never attempted to limit or define the scope of its power in that field. Petition of the Florida State Bar Association, 134 Fla. 85 §, 186 So. 280.

If not limited in the Constitution, the great weight of authority in this country supports the view that courts have inherent power to make rules governing contempt, admissions to the bar, and for the conduct of the business brought before them. They have no power to affect substantive law or jurisdiction.

In any event, the question must be approached in the light of the dominant law of the State concerned. Some of the State Constitutions are silent on the subject; some of them confer the rule-making power exclusively on the courts; some of them vest it in the Legislature while others divide it between the courts and the Legislature. Florida appears to fall in the latter class, since Section 20 of Article 3 of the Constitution, among other things, provides that the Legislature shall not pass special or local laws regulating the practice of courts of justice, except municipal courts. Section 21 of the same article requires that all such laws be general and of uniform operation throughout the State.

I do not construe these provisions to be exclusive but supplemental to the power of the courts to prescribe rules regulating contempts, admissions to the bar, and for the conduct of judicial business. Certainly they authorize the Legislature to enter these fields and, when so entered, legislative acts will be respected by this court. Smith v. Guckenheimer and Sons, 42 Fla. 1, 27 So. 900. Section 4682, Compiled General Laws of 1927, authorizes this court to make rules of practice to govern process, judgments, and to prescribe forms in all courts provided that they do not conflict with acts of the Legislature.

As the law on the point now stands, the Legislature may prescribe rules of practice and this court may prescribe such rules not inconsistent with those passed by the Legislature, but those passed by the Legislature will not be respected if they hamper the administration of justice or are for any reason unconstitutional. The Legislature has also regulated admissions to the bar which have been supplemented and observed by this court. The Legislature has also defined and in some respects regulated contempts and its entry into that filed has been respected by us.

The fact of one department being clothed with inherent power does not necessarily mean that all others are excluded. When another power as here is permitted to operate in the same field, it follows that the field of inherent power is narrowed. At best, the rule-making power covers a narrow field and this is true because legislation is not a judicial function. To impress by comparison, it may be said that given its full scope, the rule-making power is in proportion to that of the Legislature as the power of Congress is to that of the town council of a Florida town of 500 people.

The state of the law in Florida is typical of the development of common-law procedure; while generally understood to be court made, it is in reality a medley of rules of court and legislative acts, the former being more evident. This notwithstanding the fact that the general concept of the doctrine of the separation of powers is that of three independent departments each supreme in its field. The root of this doctrine may be traced to Cicero and Aristotle, but it was converted into a political philosophy by Locke and Montesquieu and was first put in practical application by the Constitutions of this country. There has never been a time in the history of this doctrine when the powers of one department have not depended on or have been aided in some way by those of another.

It was admitted at the bar that this court was powerless to promulgate a rule which had the effect of enacting or repealing a statute involving jurisdiction or substantive law. It is shown, however, that the proposed Rules of Civil Procedure will amend, modify, or repeal more than 350 statutes. The limits of procedural and substantive law have not been defined and no two would agree where the one leaves off and the other begins. There is also between the two a hiatus or twilight zone that has been constantly entered by the courts and the Legislatures. Petitioners contend that none of the proposed rules affect substantive law but suggest that if there be such, they should be discarded. We have examined the affected statutes and I think many of them go to matters of substantive law and jurisdiction.

Another element that lends confusion to the situation is that the current of substantive law and procedural law often coalesce. What is regarded as substantive law today may become procedural law tomorrow, and vice versa. Conflicts on this point have given rise to powers that are said to be not strictly legislative or judicial and when this is the case, the power of the Legislature is dominant.

A wealth of experience teaches that court made rules have worked much more effectively than legislative made ones. For this reason, the tendency of late years has been to pass enabling acts authorizing the court to occupy the field to the exclusion of the Legislature. Chapter 13870, Acts of 1929, authorizing this court to make rules, forms, process, writs, pleadings, and motions affecting its procedure is typical of this class of legislation. The Act of 1934, 28 U.S.C.A. §§ 723b, 723c, authorizing the Supreme Court of the United States to regulate civil procedure in the federal courts was necessary because of the Conformity Act of June 1, 1872, 28 U.S.C.A. § 724, requiring federal courts to conform to state procedure and is another example. These statutes serve the following purposes: (1) They determine what court in the judicial system may exercise the rule-making power, and to what extent it may be exercised, (2) They settle any question as to what forum shall exercise the rule-making power in those cases where procedural law and substantive law overlap, and (3) They may enlarge the power of the rule-making court to repeal conflicting statutes and in other ways harmonize apparent conflicts in jurisdiction.

We are therefore convinced that the petition to adopt and promulgate the Florida Rules of Givil Procedure should be denied because:

(1) The said rules are designed to govern subordinate courts in the judicial system of this State, most of which are constitutional courts with defined jurisdiction and this court has no supervisory jurisdiction over them nor is it now authorized to make rules for their governance.

(2) The said rules affect more than 350 statutes, many of which deal with questions of jurisdiction and substantive law which this court is wholly without power to repeal or modify by rule.

(3) It would be impossible to separate the rules that affect procedural statutes from those which affect substantive or jurisdictional statutes and to attempt it would create confusion and uncertainty in procedure that we would be a generation construing and straightening out.

(4) The power of this court is limited to adjudicating controversies brought before it. By Chapter 13870, Acts of 1929, the Legislature in effect abdicated its right to make rules governing the Supreme Court but it refused to do so as to subordinate courts and having no supervisory power over the latter, the Supreme Court cannot now make rules governing them nor repeal those made by the Legislature in the absence of legislative authority to do so.

In this, we do not overlook the reasons urged for improving judicial procedure, but it takes more than public urgence to clothe the court with power where none existed before. It is inconceivable that litigants of the present who transact business by the press of a button, the aid of a dictaphone, or the switch of a gadget, who ride in high-powered cars, traverse the continent overnight by airplane, hop to Europe by Clipper, and spend the weekend in Miami out of New York, would be content like Balaam, to travel the...